Friday, July 1, 2016

Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A,B,C & D alike [Judgement Included]

Dear Colleagues,

Please refer to my earlier posts dated 02 March 15 and  10 Oct 14, on the subject. 

In a historic judgment in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others, the Hon'ble Supreme Court on 30 Jun 2016 has set aside / quashed the two office memorandums No.36035/16/91-Estt. (SCT) dated 18.02.1997 and No.36035/3/2004-Estt. (RES) dated 29.12.2005 issued by the Department of Personnel and Training, Government of India, terming them as illegal and inconsistent with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

In the instant case the petitioners, Rajeev Kumar Gupta and seven other persons with disabilities serving as engineers in Prasar Bharti made the grievance that the higher level posts in the engineering cadre were filled mostly by promotion. Although these posts were suitable for persons with disabilities, the Government was denying them 3% reservation in these posts, which amounted to defeating the intent and purpose of reservation provided for in the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995. At the heart of the problem were the DoPT instructions dated 18.2.97 and 29.12.2005, which prohibited reservation in promotion for disabled persons in Group A and B posts. 

Petitioners had argued that a large number of Groups A and B were filled only through promotion and because of the impugned DoPT memorandums, the benefit of reservation under Section 33 of the 1995 Act was denied with respect to those posts. Petitioners therefore lost out on a significant amount of opportunities at the upper end of the organizational hierarchy.

The government opposed concession to the disabled, contending that they have no right to demand reservation in promotion to identified Group A and Group B posts. It also cited the nine-judge bench ruling by the apex court in the Indra Sawhney (Mandal reservation) case, to maintain reservation should be confined to recruitment at the initial level, and not at the stage of promotions.

It may be pertinent to mention that in the Indra Sawhney case while dealing with caste based reservation issue, the Bench had held "Reservation in promotion is constitutionally impermissible as, once the advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to be brought in the group would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it."

But the bench dismissed the government’s arguments, noting that once the posts for the disabled have been identified under Section 32 of the Act, the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation.

“It would be a device to defraud persons with disabilities of the statutory benefit. Once a post is identified, it means that a person with disability is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than 3 per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post,” it held.

The bench further said that Indra Sawhney’s case shall not impose a bar on reservation for the disabled, since the principle laid down in this case is applicable only when the State seeks to give preferential treatment in the matter of employment to the backward class.

“The basis for providing reservation for persons with disabilities is physical disability and not any of the criteria forbidden under Article 16(1) such as caste, religion etc. The objective behind the 1995 Act is to integrate those living with disabilities into the society and to ensure their economic progress… persons with disabilities are not and cannot be equated with backward classes contemplated under Article 16(4),” it said. Article 16 of the Constitution empowers the state to prescribe preferential treatment to certain classes in matters of public employment.

The judgement is historic and a major milestone in the fight for restoring the rights of persons with disabilities in India. 

The argument in this case were concluded on 17.03.2016  and the bench had reserved the judgement.

The case, represents success in a hard fought battle waged by persons with disabilities for equal opportunity and representation in the higher echelons of Government. Hitherto, disabled persons were likely to stagnate at the lower levels of the organizational hierarchy, as their promotion to higher level posts was made difficult because of their physical disadvantage. 


Brief Background of related matters

It may be pertinent to mention that the Hon'ble Supreme Court  had on 08 Oct 2013 in the case titled Union of India vs. National Federation of the Blind delivered a land mark judgment directing the Govt, of India and State Governments to compute 3% reservation for persons with disabilities in all groups of posts against the total number of vacancies in the cadre strength. The Hon'ble Court also laid down that the computation had to be done in an identical manner in respect of all groups of posts. Subsequently, the Hon'ble Supreme Court vide its judgement dated 10 Dec 2013 in a case titled as MCD Vs. Manoj Kumar Gupta upheld a judgment of Hon'ble Delhi High court which declared that Section 33 of the Disabilities Act, provided for reservation in promotion for persons with disabilities in Groups A and B also.

But instead of implementing the judgement, the Govt. of India had been contesting the issue through various frivolous litigation which were nipped in the bud each time by the Hon'ble Court. 

Judgement Copy

(Hyperlinked text opens the judgement in a new windowJudgement dated 30 June 2016 in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others

Updates as on 04 Sep 2017 

The issue of whether persons with disabilities deserve reservation in promotions as well, apart from the reservation that exists in appointment, has been escalated by the Supreme Court to a five-judge bench since it requires interpretation by the Constitution bench.

On Monday (September 4, 2017) the bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud heard deposition by Solicitor General Ranjit Kumar and counsels  requested a larger bench to hear the issue. The three judge bench headed by the Hon'ble Chief Justice Dipak Misra agreed to refer the matter to a five-judge bench.

The question that has arisen in this case is whether persons, governed under “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”, can be given reservation in promotion. A view had been taken by this Court in Rajeev Kumar Gupta & Others vs Union of India & Others in the affirmative. The Solicitor General had pointed out that the prohibition against reservation in promotion laid down by the majority in Indra Sawhney vs Union of India and Others – (1992) case applies not only to Article 16(4) but also to 16 (1) of the Constitution of India and inference to the contrary is not justified. Persons with disabilities certainly require preferential treatment and such preferential treatment may also cover reservation in appointment but not reservation in promotion. Section 33 of the 1995 Act is required to be read and construed in that background. “We find merit in the contention that the matter needs to be considered by the larger bench,” he said.

73 comments:

  1. Available here at this link

    http://www.indianemployees.com/index.php?module=judgments&p=details&id=3145-rajeev-kumar-gupta-ors-vs-union-of-india

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  2. sir, plz send judgement copy to narasimha.forever@gmail.com

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  3. Thanks for providing link.

    Plz also tell whether CG can appeal against this decision.

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  4. @ CA Joginder - After this loud clarification, we do not think the CG will go for any further appeal. Pls wait for the revised DoPT memorandums as the ones denying the reservation in promotion in gp A and B posts have been quashed by the Hon'ble Supreme Court!

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    1. Thanks a lot sir. What is the time limit for appeal in this case if CG wants to do ?

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    2. Hello Sir,
      Sir there is any Guidelines issued by Dopt till date or not
      pl inform current status.
      Regad
      shiv

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  5. Thanks for replying sir.

    U r requested to please touch with all aspects and give updates on this website itself.

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  6. The June 30 ruling, he said, “is a much called for step forward as it brings a lot of clarity on section 33.”

    So, does this mean all the creases relating to reservations for persons with disabilities in government jobs have been ironed out?

    “Not yet. Yet another petition (by Bhanu Pratap and others against the state of Uttar Pradesh) is awaiting a hearing at the Supreme Court. It will bring more clarity on promotions in state government jobs for the persons with disabilities. I will be arguing the case; hopefully, it should come up by the next week,” he said.

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  7. sir

    when will DOPT issue necessary amendments to those memorandums which will enable disabled to get promotions in Group A and Group B posts

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  8. Some person told that in spite of it, DOPT will be delay to issue memorandum or dilly-dolly on this issue. As earlier memorandum modified 06/01/2015 on the judgement 8th October, 2013. In this case, Can DOPT be delay to issue fresh memorandum, again? If DOPT delay to issue fresh memorandum then what is the possibility of us. Sir, plz comment.

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  9. In most of the recruitment rules for appointment through promotion has no physical criteria prescribed for group A posts. There is only paper DPC to appoint general able candidates in almost all ministries and departments for their smooth way, now to encourage disabled persons in group A there would not be any discrimination because DoPT may otherwise provided for physical test for all able group B gezetted officer for appointment by promotion.

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  10. If the court has ordered specifically for implementation of 3% quata from retrospective effects then we can represent for refixing of our seniority in the line of the impugn judgement from that date.

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    1. Dear sir, judgment is not impunged till date.

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  11. Should we make representation to our dept.

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  12. @Upen Patel The Hon'ble court has only clarified the subject with no specific mention of the retrospective effect. However, this is not a new law that the court has created. It only gave an interpretation which we have been arguing for several years. Therefore, the law and this position existed from the date it came in to force. No one stops you from claiming your dues. After all, in present scenario, you get your dues & rights when you ask for it! You know the famous saying -- "even a mother doesn't feed the child unless it cries!"

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  13. Sir
    How many days more when dopt publish revised o.m. for reservation in promotion in grp A n B services
    Sapankumar@gmail.com

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  14. I think the Govt. will try to oppose filing Review Petition. Govt. earlier lost repeatedly thrice in the Supreme Court
    1.Civil Appeal No.9096 of 2013, dated 08.10.2013.
    2.Special Leave to Appeal (C) No. 13344/2014, dated 13.02.2014.
    3.Special Leave to Appeal (C) No. 5914/2015, dated 28.02.2015.
    Persons with Ability in the Bureaucracy are against the Persons with Disability.

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  15. ministry of public graviances has published some guide but nothing is clear .... even chief commissioner disability is not serious on the matter .... some compliance should be made to the hon'ble SC order .....

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    1. Dear sir, do you know that chief commissioner has no power to punish (like court) even in case of non-complaince of its own order.

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  16. Government can not re appeal filling review petition. Three months has given and the orders will be issued very soon and DOPT is really not like the order.

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  17. I have been fighting my case since 2001. Am working in accounting cadre and the posts r already identified. Met DS RR IN DoPT several Times now let's c

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    1. In which court u r fighting. Govt never gives anything so easily. Govt listens for vote bank only. People just waist their energy, time and money in doing meetings with govt officials.

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    2. I too have been fighting my case since 1997 .yesterday my case came up for hearing in hon Delhi hiigh court but ADJ till july2018 in light of Rajeev Gupta case review petition pending further in supreme court...Regards Rajeev Mathur.

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  18. I have been fighting since 2001 matter pending in Delhi high Court. Met DS RR IN DoPT several times now let's see

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  19. Dear Mr. Jayaraman

    Twice I spoke to Mr. G. Srinivasan, Director REservation twice on this issue. Are you in New Delhi.

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  20. Gentlemen, even pramotions to Group C&B also never given
    .. we are working for railways, plenty of PH clerical and group D staff are waiting eagerly, can anybody guide please..

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  21. It is requested to prevail upon DOPT for early issue of appropriate OM

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  22. Whether it's applicable to DANICS officers (group b service -selected through upsc civil services examination), who are actually waiting for 2 decades to get IAS promotion. It's the first of the kind, so that, it help to get IAS quickly

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  23. @Padmanabhan - Yes, it is available to DANICS officers too! In fact, this struggle started when a PIL no. 106 of 2010 was filed in Mumbai High court when some State Civil Service Officers of Maharashtra were denied reservation opportunities in promotional posts to be selected as IAS. In this regard refer my post http://disabilityrightsthroughcourts.blogspot.in/2014/10/sc-clarifies-3-reservation-in.html

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  24. Eagerly waiting for DOPT memorandum in the matter. But found no updates till date.

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  25. UOI will definitely file review as done in all previous case. It can also be understand in the manner that every one tries to save himself while making a noting in the file.

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    1. Review petition filed. Dopt has replied to my representation confirming it

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  26. But as per my knowledge review appeal time is 30 days , which has lapsed.

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  27. Sh. Vashisth ji may be knowing better.

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  28. Rajeev Gupta ji please guide whether contempt may be filed only by you or anybody else who was not party may also file .

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  29. Supreme court judgement dated 30/6/2016 has made DOPT OMs dt 18/2/1997 and 29/12/2005 null and void.Thus DOPT OM dated16+2/1998 which provides reservation PH in matter of promotion in all groups and services is automatically becomes operative w.e.f 16/1/1998. h Vashishth ji to please examine.

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  30. Sir,in previos 13 sep 2014,28Feb 2015 and now 30 june 2016 three times honerable supreme court gave verdict but dopt never sincere about om till date.
    Pls file contemt for this issue on supreme court.
    Even department not good or helpful to physically handicapped person. I am one of them.

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  31. Sir whether it is applicable in govt bank and insurance companies thanks

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  32. Disability act is applicable to all govt deptt and PSUs

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  33. About 2.5 months after decision of supreme Court nothing is change.
    Not change in dopt
    Not got new dopt
    Government always ignore disability person.
    Government also ignore fulfillment of disability law.
    We don't understand how to fight on such issues?

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  34. Sir please let us know if any updates on the status of issuing the OM by DoPT. has the beneficiaries who have sought relief under this judgment have sought any further follow up on getting the OM. please clarify

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  35. Govt has filed review petition before the Hon'ble Supreme Court against the judgement passed in Rajeev Kumar Gupta case regarding reservation in promotion for person with disabilities

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  36. Dopt has replied to my representation stating that that have filed a review petition

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  37. What will be happen pls reply me bcz it will help lots of people.
    I am a ph employee gp b at ordnance factory kanpur
    a

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  38. If CG has filed Review Petition on the judgment, how long normally court take on such cases, c can SC dismiss the review petition as done before or it will start the process from start.

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  39. Sir, How effective CCPD can be in getting the required OM notified from DOPT

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  40. What role CCPD can play in getting the justice for PWD, once SC settles the issue

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  41. @Sandeep Goyal - CCPD may not come in picture when the matter is sub-judice in Supreme Court. Once SC settles the issue again, a contempt petition for willful disobedience will be sufficient to put dopt in motion!

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  42. when is the next date of hearing and present status of the case. Please let us know and if any support required also please let us know on this forum.

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  43. Ramesh sir, if UOI had filled the review petition, kindly post review petition number and please comment on approximate TIME duration for the decision by Supreme court.
    THANKS.

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  44. Hope Shri Subhash Chandra Vashisth Ji will bring us the rights

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  45. I sought information under RTI Act-05. They simply informed me that review petition has been filed before Hon'ble Supreme court . No further information were given to me .

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  46. Date after date justice remain same an old dialouge of sunny deol for poor,disable be same

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  47. @SC Vashishth Sir, What will happen when new Rights of Person with Disability 2014 gets thru Parliament, Whether it will override provisions of PWD ACT 1996 in accordance to which supreme Court had given judgement.

    Can New act deny the right to 3 % reservation in promotions thereby negating the efforts of 15 years to arrive at SC this judgement.

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  48. @scVasisth , what is status of reservation in promotion, whether the same adressed in new law or not . whether supreme court ruling stand now or scrapped as new act is now prevailing

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  49. Hon'ble Supreme Court has dismissed review petition filed by the UOI in the case of Rajeev Kumar Gupta & other Vs UOI on 15-12-2016 so hopefully Government of India may notify new set of rules in conformity with the Right of Person with disabilities Bill 2014 duly providing reservation in promotion for person with disabilities in all category of posts .

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  50. @sc vasishth : sir can we expect DOPT notification regarding reservation in promotions, given now prevailing Rights of PWD 2016

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  51. @Sandeep Goyal & Others - As you all are aware, the New Rights of Persons with Disabilities Act 2016 has been notified in the official gazette on 28th Dec 2016 after the Bill received the President's assent on 27th Dec 2016. Next course of action on the part of government is to notify a date for the enforcement of the Act in the official gazette. Until that is done, the PWD Act 1995 will prevail. But for the govt. to notify a date for enforcement, it is necessary that rules are made to implement several sections of the Act - for example the exercise of job-identification for all disabilities & rules on reservation in promotion to be specific as far as employment of benchmark disabilities is concerned.

    I personally feel the Babu's will not be able to subvert the clear judgement of the Hon'ble Supreme Court on Reservation in Promotion and they will have to give space to the judgement in the rules. If the govt. fails to do this, this could be easily challenged on several grounds that I may not mention here at this point in time.

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  52. Vide Gazette notification the Rights bill has come into force with effect from 19th April 2017.

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  53. This is around 1 year, after Supreme Court issued the order regarding reservation. How much time will they delay to implement that?? how much time to issue the DOPT Order?? At the time of SC Order, the Minister stated that it will take effect through RWPD Bill, now that is also paased, but without any specification regarding reservation at promotion. Please tell me what is going on?? How much more we have to wait?? will they implement it or not??

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  54. Is there any progress/news regarding reservation in promotion for physically disabled persons in Govt. job as on 14th November,2017?

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  55. Sir
    In latest I asked to dopt for what happened in our case ie reservation in promotion. Dopt replied it is jurisdiction of apex court .Any one can know same by asking questions through cpgram or ROT.

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  56. Now hobble supreme court said reservation in promotion in sc/st but we all waiting notifications for reservation in promotion for physically disable person. Sir Please comment

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  57. sir can you send a judgement copy to suganthiirraivan@gmail.com. Long years i am waiting. I fought for my first promotion. But all in vain. after 18 years got my promotion on regular basis only. Please do needful. Thankyou.

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  58. SIR, I am working in a public sector .I had met with an accident two years back and my right elbow was fractured and became ped.but our organisation recognised me as disabled but not in promotions.is it correct or is there any way to me for justice

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  59. Sir...
    I somehow didn't come to know the supreme court judgement on reservation of Physically Handicapped in promotion..
    Now my department didn't consider me in promotion orders dated 30-11-2016 that orders after the judgement..how can i fight my case please reply

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  60. m Anurudh Soni 50% orthopaedic disability working in IT cadre Govt. of Delhi…but i am not considered for regular promotion in group A post..Govt. said that there is no policy for reservation in promotion for group B to A post.however, earlier i have been promoted in group B post on adhoc basis ..but now i demotted to group A to B due to making reservation for SC ST candidates…there is injustice to disabled employees…no reservation given in promotion inspite of supreme court judgement toward reservation in promotion in case of Rajiv Gupta. where is equal opportunities and full participation as tated in PWD Act 1995..there is no implementation. Is there any reservation made in Promotion for group A post in light of supreme court judgement toward reservation in promotion for group B & Group A. kindly suggest me…can i challenge in my above matter in CAT.

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